FIRST TIER TRIBUNAL (CARE STANDARDS)

IN THE MATTER OF

TM
Appellant

AND

SECRETARY OF STATE FOR EDUCATION (1)
SECRETARY OF STATE FOR HEALTH (2)
Respondents

(2009) 1560.PC
(2009) 1561-PVA

BEFORE

MR. STEWART HUNTER (TRIBUNAL JUDGE)
MS. MARGARET DIAMOND
MS. DENISE RABBETTS

DECISION

Heard on the 9th November, 2010
Asylum and Immigration Chamber, North Shields

Representation

For The Appellant:		Mr. N. Stonor of Counsel
For The Respondents:	Ms. S. J. Davies of Counsel

The Appeal

1.	This is an appeal by Ms. T.M. under Section 4 of the Protection of Children Act 1999, against her inclusion on the list of persons considered unsuitable to work with children kept by the Secretary of State for Education, pursuant to Schedule 1 of that Act.  She also appeals against her inclusion on the list of those persons unsuitable to work with vulnerable adults, kept by the Secretary of State for Health, pursuant to Section 81 of the Care Standards Act 2000.

Preliminary Matters

2.	On the 23rd July, 2010 Tribunal Judge Hillier made a Restricted Reporting Order under Rule 14 (1) (b) of the Tribunal Procedure (First Tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008, (hereinafter called “the Rules”), prohibiting the publication, (including by electronic means), in a written publication available to the public or the inclusion of a relevant programme for reception in England and Wales of any matter likely to lead members of the public to identify any child.  At the hearing the Tribunal determined that the Restricted Reporting Order should remain in force until further order.

3.	During the course of the proceedings the Tribunal agreed to admit a number of documents as part of the written evidence namely:-

(i)	a letter from Dr. D.M.Jelley dated 22nd October 2010
(ii)	Certificates in respect of courses attended by the Appellant
(iii)	A document entitled “Threshold Criteria”

Evidence

4.	The Appellant qualified as a nursery nurse in 1990 and her employment since then has included working as a nursery nurse for Sure Start in Stockton, which began in October, 2004.  

5.	In December, 1998 the Appellant commenced a relationship with Mr PS and on the 7th December, 1999 the Appellant gave birth to PS’s child JaM, although by this stage the Appellant and PS were no longer in a relationship.

6.	Included within records kept by the social services department of Stockton on Tees Borough Council was a referral made by neighbours of the Appellant to social services on the 19th January 2003 which alleged that the Appellant had been seen flinging JaM around and into a car. At the hearing in these proceedings the Appellant stated that she denied the allegations. There had been a dispute involving the neighbours concerned. The Appellant said that the neighbours had thrown wood into her garden and parked on her driveway. It was the Appellant’s view that the neighbours had then made a malicious complaint against her. The Appellant also said that social services had investigated the matter and were happy that no harm had come to JaM.

7.     In December, 2004 PS met JaM for the first time. It was recorded by social services that in the period prior to Christmas 2004 there had been an occasion at PS’s flat when JaM had witnessed his father going “ballistic”.  

8.	In April/May 2005 the Appellant and PS moved into a new home together.  It was noted by social services that during 2005 domestic violence took place at the home perpetrated by both the Appellant and PS and that on a number of occasions they had separated.

9.	The Appellant was asked at the Tribunal hearing about her relationship with PS and in particular how they had met again in December 2004.  The Appellant stated that PS had contacted her and said that he wanted to meet JaM.  They had gone on a few dates together and then on holiday.  The Appellant had introduced PS to JaM and there had been quite a positive reaction.  They had started living together in April 2005 .Prior to then the Appellant stated that PS had never shown any  violence.  However this changed when they were living together and PS had been both verbally and physically abusive towards her as well as damaging property in the home in which they were living together.

10.	In July, 2005 the Appellant had been accused by a child at work of being “nasty and sad” and there had been an investigation.  The Appellant in her witness statement of the 3rd May 2007 produced for care proceedings, stated that a girl at Sure Start, where the Appellant was working, had painted a picture of a sad sun and a happy sun and had said that the sad sun was the Appellant.  However when the matter had been investigated the girl concerned had been asked about the picture of the sad sun by another Sure Start worker and on that occasion the girl had related the sad sun to a different member of staff.

11.	As part of the care proceedings a witness statement was submitted by Stephanie Smith-Paul, a social worker with Stockton on Tees Borough Council dated the 12th March, 2007.  In that statement Ms. Smith-Paul refers to the Appellant having been investigated by her employers with regard to her behaviour within the nursery at Sure Start which was said to have taken place in front of children and staff members.  This was alleged to have involved the Appellant being inappropriate with children. She had shouted at one child to the extent that the child was described as being terrified of her, running away from the Appellant to another member of staff.  

12.	The Appellant in her statement of the 3rd May, 2007 stated that she had been working at the nursery where there was a ratio of 2 adults to 6 children.  On the occasion referred to by Ms. Smith-Paul, the Appellant had 5 children.  She had been busy with one child when she saw another child run towards a third child and sink her teeth into her.  The Appellant accepted that she had shouted at the child, but stated that it was a knee jerk reaction.  She could not have stopped the incident occurring as she was busy with another child.  The only member of staff who was in the vicinity at the time was changing a child’s nappy and did not witness the incident. 

13.	Ms. Smith-Paul also indicated in her witness statement of the 12th March, 2007 that as part of the Appellant’s employment with Sure Start, she had been offered anger management sessions, but that she had failed to take up most of those sessions, whilst at the time telling her employers that she had attended.  In her statement of the 3rd May, 2007 the Appellant stated that it was she that had approached Sure Start to ask whether they offered anger management sessions.  She had attended DOVES. However DOVES had considered that she did not have any issues with anger management.  At the Tribunal hearing the Appellant said that she had been told by DOVES that she was a victim of domestic violence.  The Appellant accepted that she had not always kept the appointments that had been made with DOVES. If there had been an anger management course available at the time then the Appellant said that she would have attended it.

14.	In October 2005 PS left the home that he was sharing with the Appellant after further domestic violence between them.  In particular there was an incident on the 21st November, 2005 when it was alleged that the Appellant had thrown a draining board at PS and that he had kneed her in the groin as a result of which the police had been called.  

15.	In a document written by the Appellant for the police’s Domestic Violence Unit she described what had happened on this occasion.  She stated that PS had accused her of sleeping with her friend’s partner. They had rowed and the Appellant had thrown a draining board at PS denting the fridge in the process.  Later PS had kneed her between the legs causing her to fall to the floor in front of the fire.  The Appellant had called the police.  At the Tribunal hearing the Appellant denied having thrown a draining board at the Appellant saying that she had thrown it at the fridge freezer.

16.     The Appellant alleged that this incident was followed some days later by PS kicking the bathroom door off its hinges and that this had led to the Appellant seeking legal advice and applying at the end of November 2005 for a Non Molestation Order.

17.	On the 7th December, 2005 the Appellant and PS were reconciled and PS returned to live with the Appellant. The ex-parte Non Molestation injunction that the Appellant had obtained on the 30th November, 2005 had a return date of the 13th January, 2006. Neither party attended court on that date and the injunction was discharged.  

18.	There was further domestic violence over the weekend of the 11th and 12th February, 2006 which the Appellant described in her handwritten note to the police’s Domestic Violence Unit.  The police were involved again and the Appellant was arrested.  The violence between the Appellant and PS, as described by the Appellant, had taken place in front of JaM.  In her oral evidence to the Tribunal the Appellant stated that there had been a huge row during the course of which PS had threatened the Appellant and she had slapped him.  PS had called the police which had resulted in the Appellant’s arrest and she had been kept in a police cell for 4 hours.  The Appellant stated that it was not true that she had punched PS in the face. Although he had a mark on his cheek, he did not sustain a black eye.  It was correct that JaM had been present and the Appellant referred to a colouring box that JaM had had on a table in the house falling off that table when the Appellant pushed the table in order to try and protect herself from PS.  She had then grabbed JaM until the police had arrived.  The Appellant did not accept that she had lost control at this time and stated that she had been trying to protect herself and JaM.

19.	There was an incident in or about March, 2006 when the Appellant was said to have taken JaM in the car and having done so had later put JaM out of the car and told him to walk home.  At the hearing the Appellant stated that on this occasion she had been taking JaM to her father’s, as she and JaM were going to move there, following further problems with PS.  The Appellant stated that she had been feeling suicidal at the time and having collected JaM from their home she had driven a little way down the street and then decided it was not appropriate for JaM to be with her so she had let JaM out of her car and told him to go back home.  The Appellant stated that JaM could see his house from where they had stopped. By the time she reached her father’s the Appellant stated that she had had time to think, was no longer suicidal and had telephoned JaM to see that he was alright.  The Appellant said that she accepted that it had been the wrong thing to do. JaM was only six at the time.  Although JaM was upset that was because he had wanted to stay with the Appellant.  In view of the distance to his home from where he had been dropped and the fact that PS was in the house, the Appellant did not consider that her actions had placed JaM at any undue risk.  It had been stated by PS that JaM had been found wandering the street by a neighbour and had been taken home.  The Appellant did not know whether that was true or not.

20.	The Appellant became pregnant with JM in 2006 and he was born on the 15th January, 2007.  The Appellant was discharged home from hospital on the 17th January, 2007 and was seen at home by health visitors.  Those health visitors were informed that JM had been vomiting for a number of days and on the 12th February, 2007 JM was admitted to hospital with a possible diagnosis of Pyloric Stenosis, Milk Allergy or Viral Infection.  On the 13th February, 2007 JM was discharged from hospital.

21.	The Appellant gave evidence at the hearing that throughout this time there were ongoing rows between herself and PS.  

22	In her witness statement of the 12th April, 2007 in care proceedings  the Appellant referred to various incidents involving JM and the care he received in the early weeks of his life.  This included a reference at paragraph 8 to an incident on the 17th February, 2007 when the Appellant stated that whilst carrying JM in her arms at home, she lost her balance and fell slightly.  JM was in her left arm and she had banged that arm on the door frame and as she did so JM had bumped his head.  The Appellant stated that she had drunk a couple of glasses of wine, but was not drunk.  JM had made a noise but he did not cry.  The Appellant had not thought that there was any cause for concern.  JM did not have any bumps on his head.  

23.	In her witness statement of the 3rd May, 2007, the Appellant referred to an incident on the 20th February, 2007 when she and PS were due to go to the Killers concert in Newcastle.  PS had become aggressive because he did not want to go to the concert.  PS had put his fists up to the Appellant’s face and she had slapped him.  

24.	The Appellant also gave her account of suggestions that JM had been dropped.  In respect of an incident on the 19th February, 2007, the Appellant stated that she had offered JM to PS who at that time, was playing with JaM on a play station.  The Appellant denied that she had dropped JM from breast height as had been suggested by PS, she maintained that JM had been fully supported at all times and did not come to any harm.

25.	The second occasion was on the 20th February and formed part of the argument relating to the Killers concert.  PS in a statement dated the 12th April, 2007 in the care proceedings stated at paragraph 11  that while he was sitting playing on a Play station with JaM, the Appellant had opened the bedroom door and said that she had had enough and had then dropped JM into his arms from approximately breast height.  This was denied by the Appellant.

26.	On the 22nd February, 2007 the Appellant had contacted her doctor’s surgery expressing further concerns about JM vomiting.  The receptionist at the doctor’s surgery having spoken to the doctor, telephoned the Appellant at home.  A statement was taken from the receptionist a Ms. B. Miller, by Cleveland Police on the 27th February, 2007.  In that statement Ms. Miller recounted a telephone call that she had made to the Appellant stating:-

“I told her that I had spoken to the doctor and he advised her to take the baby straight to the hospital.  She then said that she couldn’t go to casualty as she hadn’t had a shower.  I was a bit taken aback by this remark as I thought that if you were concerned enough about your baby it wouldn’t matter whether you had had a shower or not.  She continued crying and sobbing and I told her that I thought she should really go to casualty and then she mentioned again about not having a shower.  Before I mentioned about her going to casualty again, I think she made a remark to me which I am not exactly sure she said because of the hysterics and the crying and the sobbing but I think she said “he’s dropped the baby on the bed”.

27.	At the Tribunal hearing the Appellant stated that during one of the telephone calls that she had had with the doctor’s surgery there had been an ongoing row with PS and that he had thrown JM on the bed and the receptionist had overheard what was happening.  PS had kicked off when the Appellant was trying to talk to the receptionist.

28.	On the following day the 23rd February, the Appellant and JM were visited by a health visitor, Annie Wake who reported that the Appellant was calm but was concerned about JM’s vomiting.  In a witness statement dated the 19th May, 2008 in the care proceedings PS stated that on the 23rd February he had thrown JM into the air by about 1½ feet and then let him drop into his hands at waist height, which he thought that he had done on about three occasions on that day.  

29.	On the 24th February, 2007 JM was admitted to hospital with vomiting and irritability at 12.23pm and at 5.10 he suffered a seizure.  On the 25th February, 2007 a CT scan was carried out which at the time was thought to indicate that JM had fractured his skull.  On the 26th February, 2007 JM was examined by a Consultant Paediatric Ophthalmologist and retinal haemorrhages were identified.  As a result a referral was made to the police and social services.

30.	On the 7th March, 2007 both the Appellant and PS were arrested by the police and interviewed under caution.  On the 12th March, 2007 proceedings for Interim Care Orders were issued by Stockton on Tees Borough Council and within those proceedings statements were filed by both the Appellant and PS.  In addition medical reports were prepared by a number of practitioners including Consultant Obstetrician and Gynaecologist, Dr. Maggie Blot and Dr. Ward Platt a Consultant Paediatrician (Neonatal Medicine).  The evidence given by those two doctors was that it was very unlikely that the injuries to JM were sustained during delivery.

31.  A fact finding hearing in the care proceedings took place in the Middlesbrough County Court before his Honour Judge Briggs, who gave his judgment on the 13th February, 2008.  In his judgment his Honour Judge Briggs referred to the medical practitioners who had been involved in JM’s case, which included the initial treating doctors, namely Dr. Verber, a Consultant Paediatrician and Mr. Clarke a Consultant Ophthalmic Surgeon and in relation to the after event investigation, Dr. Sprigg, a Paediatric Radiologist, Mr. Gregson, a Consultant Ophthalmologist and Dr. Maggie Blott and Dr. Ward Platt.  

32.	In his judgment his Honour Judge Briggs referred to the Appellant and PS each accusing the other of discreditable conduct and concluded that none of the explanations that he had been given relating to the way in which JM might have sustained his injuries, was considered by the experts to have accounted for the particular injuries that JM had.  At paragraphs 69 to 73 of his judgment his Honour Judge Briggs found as follows:-

“69.	Well, the atmosphere in this house, I accept perhaps not on a perpetual basis, in the sense that there were rows every day of the 24 hours of the 19th, 20th, 21st, 22nd, 23rd and 24th but it was enormous bad atmosphere.  And when one looks at that, and considers the medical evidence and considers all the explanations that are made, I am afraid I am left with the firm impression and I do find, that really I am not being told the whole truth about this particular matter.  I have already indicated that in relation to the actual carrying out of the harm, it could quite easily happen with one person doing it on their own and the other not knowing, equally, bearing in mind the background of what had gone on between the 19th and the 24th, it seems to me equally possible and just as probable, that whatever did happen to (JM) happened in the context of a row between the parties and one that eventually erupted in some way and harm was done.

70.	In relation to that aspect of matters, it is really on that basis that I am driven to the conclusion that neither party is telling me the truth about that particular matter and I say that because, 

(a)	The relationship;
(b)	The rather odd exchanges that are reported between the parties and Father volunteering to take the rap, volunteering apparently to make something up just to explain matters.

71.	Well, of course, people in difficult situations can tell lies and they sometimes do it to get out of a difficult situation, to explain the things that they are not in a position to explain.  I appreciate all that, but I am afraid I take the view that in this particular case, looking at that staggeringly unusual history of the week that immediately preceded  (JM’s) admission to hospital, the position is that one or other of these parents hurt that child.  I am not in a position to say which, but I do find it equally probable in the sense of the individual carrying out the particular attack, I do find it equally probable that the whole thing has resulted from a row similar to the one that has occurred on the 20th and, of course, if there is anything wrong with the timing, we can go back to the 20th and consider what the atmosphere was like between the 20th and the 21st.

72.	This was a house of the very highest tension.  It was a house, not only of high tension, but contained two people who were prepared to have a go at each other in the presence of the children and there is plenty of evidence about that and quite apart from any separate blame, I think it is equally probable that something has happened resulting in the damage to this child in the context, and in the presence of the parties where whoever did it, the other knows perfectly well who did it and is not saying.  And on that basis, it seems to me, really not a proper case for me to accede to Mr. O’Sullivan’s submission and, as it were, find father responsible on his own or accede to Mr. Hall’s submission and find mother responsible.  I do not think that this is such a case and indeed the background of the matter suggests there is a good deal that has happened here that has remained uncovered.

73.	On that basis I find that the Local Authority’s submissions are the ones really which meet the factual  situation in this case and most accurately reflect it and I find that it is a case where this child was non-accidentally injured and that one or other of the parents, or both, were responsible.”

33.	On the 15th March, 2007 JM was discharged from hospital into foster care.  Further evidence was submitted in the care proceedings by both the Appellant and PS. Both JaM and JM were  subsequently made the subject of special guardianship orders in favour of the Appellant’s father and his wife with whom JaM and JM now live.

34.  On the 9th March, 2007 the Appellant had been referred to the first Respondent by Stockton on Tees Borough Council following the child Protection referral regarding JaM and JM which had taken place on the 26th February, 2007.  On the 19th January, 2009 the Appellant was informed that she had been provisionally included on the Protection of Children Act, (POCA) and Protection of Vulnerable Adults (POVA) lists.  On the 30th March, 2009 the Respondents wrote to the Appellant, informing of her inclusion on both lists.  

35.	On the 26th June, 2009 the Appellant appealed to this Tribunal against her inclusion on the POCA and POVA lists.  In her appeal the Appellant accepted that her children, JaM and JM, had been subject to care proceedings in the Middlesbrough County Court which had concluded in June, 2008, with Special Guardianship Orders being made to the children’s maternal grandparents.

36.	It was also stated by the Appellant that she did not consider that she was unsuitable to work with children or vulnerable adults. The children concerned had suffered harm within the context of a relationship characterised by domestic violence between the Appellant and her partner, the children’s father. Further the Appellant had now permanently separated from the children’s father and had no intention whatsoever of being party to any abusive relationship.  She had actively sought participation in programmes to address domestic violence and anger management issues, completing the Freedom Project Domestic Violence Programme, an anger management course and she was participating in life coaching.  The Appellant’s circumstances have significantly changed since the point at which the findings were made in the care proceedings.  She continued to enjoy regular contact with her children and there had been absolutely no concerns arising from any of the contact visits.  

37.	In their Response to the appeal the Respondents referred to the injuries sustained to JM and the conclusions reached in the care proceedings.  It was also noted that there had been a police investigation, but that a subsequent referral for advice to the Crown Prosecution Service had concluded that there was insufficient evidence to instigate criminal proceedings in respect of JM’s injuries.  It was also stated by the Respondents in their Response as follows:-

“The Respondent maintains that the evidence in relation to the non accidental injuries which were found on (JM) demonstrate that TM either inflicted them or was complicit in not disclosing who the true perpetrator was.  The evidence demonstrates that TM was guilty of misconduct which harmed a child and that she is unsuitable to work with children.  The lack of insight into these matters which TM has disclosed in her Appeal Form further substantiates the Respondent’s view that TM is unsuitable to work with children and the POVA cross listing is justified as her misconduct and her lack of insight into the harm she caused (JaM) means that she is also unsuitable to work with vulnerable adults.”

38.	The Respondent produced in evidence in these proceedings medical reports from Dr. Alan Spriggs, a Consultant Radiologist and Dr. Richard Gregson, a Consultant Ophthalmologist, as well as witness statements from Catherine Nozedar a nurse specialising in paediatrics, who exhibited a statement that she had given to the Cleveland Police dated the 7th March, 2007 and a witness statement from Stephanie Louise Smith-Paul, a social worker who exhibited the statement that she had made to Cleveland Police, dated the 1st March, 2007.

39.	The Appellant also signed a witness statement in these proceedings dated the 10th August, 2010, in which she commented on her relationship with PS and denied that she had inflicted any injuries on JM or that she had seen any injury being inflicted upon him by PS.  She also stated that she still had a certain amount of difficulty accepting that PS could have caused the injuries that JM suffered, but then went on to state:-

“However it is now very clear to me that within the proceedings, he lied, tried to blame me, chopped and changed his story.  At the end of the day, only he knows what happened to (JM).”

 At paragraph 7 of her witness statement she stated as follows:-

“7.   However, I understand and accept how the Judge reached the conclusions he did on the evidence before him and I accept totally that agencies may be concerned about me as a result of the findings that the Judge has made.”

40.	The Appellant stated that her relationship with PS had ended in 2008 and that she had had no further contact with him since then.  She had found losing her children devastating and her contact with them now was 12 times a year on a supervised basis.

41.     During the last two years the Appellant stated that she had sought support from a number of agencies and services, and she detailed the various programmes that she had attended.  In November, 2009 the Appellant had gone to Newcastle where her mother and brother lived and had moved in with her brother.  However following an incident in February, 2009 when her brother was said to have assaulted his girlfriend the relationship between him and the Appellant had quickly declined.  The Appellant’s brother had been verbally abusive and aggressive to the Appellant and she had moved out of the house.  

42.	In mid July, 2009 the Appellant stated that she had been the subject of an unprovoked assault by her brother’s ex-partner which had led to his prosecution, but at the same time had also impacted on the Appellant’s own relationship with her mother.  In June, 2009 the Appellant had been involved with a new partner, MJ. Although the relationship had started well, in November, 2009 MJ had come to her house after a night out drinking and assaulted her.  In April, 2010 the Appellant had experienced difficulties with MJ’s ex-partner CB who had been abusive to the Appellant.  The abuse had escalated, and at a time when the Appellant stated that she was under stress and not thinking straight she had damaged a car belonging to MJ and CB.  The following day the Appellant stated that she was subject to a serious assault by CB and an acquaintance of CB’s.  The Appellant regretted her actions which she stated were totally out of character for her.

43.	As far as work was concerned, the Appellant stated that having moved to Newcastle she had begun volunteering at an Oxfam Charity Shop, but following her POCA and POVA listings had been told by Oxfam that she could no longer work there. She was subsequently employed as a volunteer at a charity shop for St. Oswald’s Place Charity, under the supervision of a Jayne Munroe who had been her previous manager at Oxfam.

44.  The Appellant was receiving 	Incapacity Benefit having been diagnosed with anxiety and depression and had received cognitive behavioural therapy through her GP.  She was awaiting the completion of an assessment at Claremont House in respect of her eligibility for psychotherapy.

45.	At paragraph 21 of her witness statement the Appellant stated that she did not seek to go behind the findings made by his Honour Judge Briggs and she accepted that her boys had suffered harm.  However she did not accept that due to that harm, she was unsuitable to work with children.  She then went on to say at paragraph 22 that although her career was in childcare she did not seek to or have any intention in the future of working with children, but that she would like to retrain and work or volunteer with women who suffered from domestic violence and had undergone similar experiences to herself, as she believed she had something worthwhile to offer them.

46.	The Respondents did not call any witnesses to give evidence at the Tribunal hearing. The Appellant herself gave evidence and in answer to questions from Mr. Stonor gave details of the various programmes that she had attended since the conclusion of the care proceedings. She also stated that she had done a Counselling Skills Course and had received a Certificate of Attendance in October, 2010.  

47.	The Appellant said that it had been a mistake to let PS come back into her life as he had already been violent to her.  Although he had been threatening to her, she had not seen him threaten the children.  She would not place herself in a similar position in the future where violence could happen.  

48.	On being cross-examined by Ms. Davies, the Appellant gave evidence of her relationship with PS and what had occurred.  The Appellant was specifically asked about the steps that she had taken to protect her children, which included questions about JaM and an incident prior to JM’s admission to hospital.  In her witness statement in the care proceedings, dated the 24th January 2008, the Appellant had stated as follows:-

“Prior to JM’s hospital admission JaM told me that he had “busy bees” in his ears because his father had smacked him round the head a few days earlier.  I reported this to the contact assistant and the same is contained in the contact notes.”

The Appellant stated that she had not told anyone for quite a long time about what JaM had said. She was living with PS and  he was continuing to threaten her. She was going through the court proceedings at the time.

49.	The Appellant acknowledged that when the care proceedings were ongoing she was still in a relationship with PS, notwithstanding JM’s injuries.  She had loved him in the past. She did ask PS to leave, but he had refused and she had nowhere else to go.  

50.	As far as what had happened to the Appellant since the care proceedings was concerned the Appellant stated that she had learnt a lot from damaging the car of MJ and CB.  It had been out of character for her and she had never been in trouble with the police.  She acknowledged that the damage that she had caused was wrong.  She had now distanced herself from the people involved and had found her own flat.  She was also going to receive psychotherapy which would help her. She had not had the right support to deal with the loss of her children in the past and when she had damaged the car it had occurred at a time when her contact with the children had stopped.

51.	In response to questions from the Tribunal panel regarding the occasion when JaM said that he had “busy bees” in his head, the Appellant stated that this had occurred in the week before JM had gone into hospital.  JaM had been having tantrums indoors.  When the Appellant had seen him crying she had not been aware that PS had hit him. She had not addressed matters at the time.  She thought that she could sort the situation out.  In hindsight she stated that she should have walked out of the house with the children.  

52.	The Appellant acknowledged that the incident when she had damaged MJ and CB’s car was after she had taken the anger management course in 2008.  She now wanted to focus on psychotherapy and anger management.  She had found it difficult to obtain that type of support, but she had now under gone an assessment.  She wanted her children to be proud of her in the future.

53.	The Appellant as part of her appeal submitted a written statement from Gillian Misz, dated the 12th September 2010, who stated that she had known the Appellant since they had started working together at St. Oswald’s Place Charity. She had become good friends with the Appellant and at work had the utmost trust and respect for her. There was also a statement from Jayne Munroe dated the 17th August, 2010, in which she stated that she was a Shop Manager at St. Oswald’s Place Charity Shop and that she had known the Appellant in a work capacity since 2008 when Ms. Munroe had been the manager at an Oxfam charity shop.  She described the Appellant as being enthusiastic and honest, good at her job and having a good rapport with customers.

The Law

54.	Section 4 (1) of the Protection of Children Act 1999 reads as follows:-

“An individual who is included (otherwise than provisionally) in the list kept by the Secretary of State under Section 1 above may appeal to the Tribunal against:-

(a)	the decision to include him in the list; or
(b)	with the leave of the Tribunal, any decision of the Secretary of State not to remove him from the list under Section 1 (3) above.”

and in terms of the Tribunal’s powers on hearing an appeal, Section 4 (3) states:-

“If on an appeal or determination under this section the Tribunal is not satisfied either of the following, namely:-

(a)	that the individual was guilty of misconduct (whether or not in the course of his duties) which harmed a child or placed a child at risk of harm; and 
(b)	that the individual is unsuitable to work with children, 

the Tribunal shall either allow the appeal or determine the issue in the individual’s favour and (in either case) direct his removal from the list; otherwise it shall dismiss the appeal or direct the individual’s inclusion in the list.”

Tribunal’s Conclusions

 55.	The issues that we need to consider in respect of this appeal are effectively in three stages.  Firstly we need to determine whether the Appellant was guilty of misconduct in the terms set out in Section 4 (3) above.  If we are satisfied in respect of the Appellant’s misconduct we then need to go on and consider whether the Appellant is unsuitable to work with children and then whether she is unsuitable to work with vulnerable adults.

56.	The referral to the Respondent was made by Stockton on Tees Borough Council where the Appellant was employed as a nursery nurse at a Sure Start establishment.  The referral came about as a result of a child protection matter involving the Appellant’s two children. This resulted in care proceedings, with a fact finding hearing taking place before his Honour Judge Briggs in the Middlesbrough County Council on the 13th February, 2008.  As a result of the findings made, both the Appellant’s children were made the subject of Special Guardianship Orders.  

57.	The issue of how the Tribunal should treat the findings of his Honour Judge Briggs was the subject of submissions by Counsel for both parties.  In the event certain concessions in respect of the issue of misconduct were made by the Appellant and accepted by Ms. Davies on behalf of the Respondents.  The concession reads as follows:-

“Misconduct – Basis

TM concedes that the Tribunal may be satisfied for the purposes of Section 4 (2) (a) of the POCA 1999 and Section 81 (3) (and Section 92 (4) ) of CSA 2000, that she was guilty of misconduct which harmed a child or placed a child at risk of harm.

This concession is based on the following:-

1.	Within care proceedings HHJ Briggs considered the relevant written and oral evidence from expert and lay witnesses and concluded on a balance of probabilities (in a judgment dated the 13th February, 2008) that:-

(a)	JM (born 15th January, 2007) the son of TM and PS – suffered non accidental injuries whilst in the care of his parents; these injuries were discovered by medical professionals following JM’s admission to hospital on the 24th February, 2007.  

(b)	The injuries were:

(i)	Two subdural haemorrhages of different ages, the second with foetal brain damage
(ii)	Retinal haemorrhages in both eyes

(c)	The injuries were caused by TM or PS 

(d)	The non perpetrator failed to protect JM.

(e)	TM and PS put JM and JaM at risk of physical and emotional harm by exposing him to the volatility and violence within their relationship.”

58.	The effect of this concession on behalf of the Appellant, is that she accepts that she failed to protect JM from the injuries he sustained and  placed both her children at risk of physical and emotional harm by exposing them to the volatility and violence of her relationship with PS.  We consider that this amounts to serious misconduct on the part of the Appellant that either harmed JM or placed him and his brother at risk of harm.  

59.    We have then considered the issue of suitability firstly in relation to the Appellant working with children.  We were referred by Ms. Davies to the comments made by the Tribunal case of Mairs [2004] 269 PC in particular paragraph 111 of that decision where the Tribunal stated as follows:-

“111.	Unsuitability must be judged by the Tribunal at the date of hearing.  The judgment will involve consideration of the character, disposition, capacity and ability of the individual concerned, including his or her ability to act properly in potentially difficult or frustrating circumstances.  The judgment will inevitably be, at least in part, by way of deduction from past performance, including (but not limited to) the nature and extent of the misconduct, admitted or proved during the course of the proceedings which harmed the child or placed a child at risk of harm.  The Tribunal may have regard to:-

(a)	the number of the incidents constituting the misconduct established for the purposes of Section 4 (3) (a) of the Act;
(b)	the gravity of that misconduct;
(c)	the timing that has elapsed since that misconduct;
(d)	the timing and degree of recognition by the applicant that the conduct constituting misconduct and had the potential to harm a child;
(e)	the steps taken by the applicant to minimise the possibility of their being a reoccurrence of that or like misconduct; and
(f)	extenuating circumstances surrounding the misconduct.

This should not be regarded as an exclusive list.  The Tribunal may also have regard to other admitted, undisputed or proved past conduct of the applicant, whether good or bad.”

60.	We accept that the Appellant’s misconduct and the circumstances surrounding that misconduct are important factors when it comes to considering the issue of unsuitability.  Whilst we do not propose to go further than the concession agreed between the parties, in terms of his Honour Judge Briggs’ findings, there are aspects of the Appellant’s behaviour during the course of her relationship with PS which we consider do need to be taken into account as part of the process of determining whether the Appellant is or is not suitable to work with children.  

61.	Firstly the Appellant was involved in a relationship which involved her living with PS for a period from 2005 through to 2008.  During that time JaM was present and witnessed violent altercations between the Appellant and PS.  These escalated in the period immediately before JM’s admission to hospital in 2007.  They included an incident in November, 2005 when the Appellant admits in the handwritten note that she prepared for the Domestic Violence Unit, that in JaM’s presence she had thrown a draining board at PS and that he had kneed her between the legs.  A Non Molestation Injunction was granted as a result although not subsequently pursued.

62.	Then a few days later there was an incident, which again the Appellant refers to in her handwritten notes, involving the Appellant and PS, when the Appellant admitted throwing a chair and a box at PS and that PS had called the police.  JaM was again present during this dispute, because the Appellant had collected him and sat in the garden with him to await the arrival of the police.  The Appellant was then arrested and the Appellant records that it was “very distressing to see his face peering through the blind as I was put into the van”.

63.	There was also an incident again involving JaM in March of 2006 when the Appellant accepted that she had put him out of the car when she was going to her father’s, apparently because she was intending to commit suicide.  We regard this as a particularly serious incident as it is clear from the Appellant’s own evidence, that JaM did not want to get out of the car and did not want to go to his father.  Whilst it may have been the case that JaM was not in great physical danger in that he was dropped off in the street where he lived and his father was at home, nevertheless it was clearly very upsetting for JaM.  

64.	As regards JaM, there was also a report recorded in 2003 by social services that the Appellant had flung him around and into a car.  We heard no evidence from the neighbours who had reported this incident and social services took no action. The Appellant gave evidence that this was a malicious report by a neighbour and we have not, in considering the Appellant’s suitability, taken this into account.

65.	There was however an incident which occurred while the care proceedings were ongoing, when JaM reported to the Appellant having “busy bees” in his head.  This was acknowledged by the Appellant when she gave evidence in these proceedings and she also accepted that she had done nothing to seek treatment for him.  Once again we regard this as serious, although we do take into account that this was a time when JM was vomiting and it was undoubtedly a period of great stress for the Appellant.

66.	As regards JM himself, he suffered serious injuries a few weeks into his life and the fact that the Appellant did not prevent these injuries taking place (as found by his Honour Judge Briggs) is clearly very serious.   

67.  As a result of the incidents in 2007 the Appellant’s sons were taken into care. Notwithstanding this the Appellant’s relationship with PS continued until after the care proceedings. The Appellant and PS separated in 2008 and we acknowledge that in moving to Newcastle in 2008 the Appellant did put some distance between her and PS.

68.  The Appellant stated that she did not know when the injuries to JM had been caused and it is apparent from the care proceedings that it took her some time to be convinced that they were indeed non-accidental injuries. She appeared to be clinging on to other possibilities and it was not until the care proceedings before His Honour Judge Briggs, that there was a recognition on the part of the Appellant that the injuries to JM were indeed non-accidental. By the time of the hearing in respect of these proceedings the Appellant accepted that she should have done more to protect JM. In respect of JaM and in particular the incident when he told the Appellant that he had “busy bees” in his head, it was not until it was put to the Appellant at the hearing, that there appeared to be any understanding on the part of the Appellant that she should have done more to protect him.

69.   In terms of the steps taken by the Appellant to minimise the possibility of a recurrence, as already indicated we take into account that she has broken off her relationship with PS and moved to Newcastle. We also take account that the Appellant has received Cognitive Behavioural Therapy and been assessed for psychotherapy.  She has completed various courses, including counselling sessions, a domestic violence programme and an anger management course.

70. The harm which has happened to JaM and JM occurred when the Appellant was in a violent relationship, which was described by His Honour Judge Briggs at paragraph 5 of his judgment as follows:

“5. As I have said, the history is an unusual one. The parties met and commenced their relationship in December of 1998 and (JaM) was born in 1999. It is a surprising feature of the case that the parties did not cohabit until April of 2005 and (JaM) did not meet his Father in any meaningful way until December of 2004. It is perfectly apparent that, when that cohabitation started, the relationship between them was indeed a volatile one, with a number of matters in the general description of violence and a number of separations. There have been injunctions applications and arrests.”           
 
We take that into account in looking at the issue of the Appellant’s suitability to work with children and vulnerable adults. We also acknowledge that in January 2007 the Appellant gave birth to JM by way of a caesarean operation and that she gave birth to a sick baby.

71. We accept Mr Stoner’s submission that the Appellant gave her evidence at the hearing in a candid and frank manner, at times dealing with particularly difficult issues including her own childhood.  There was a recognition on the part of the Appellant that all her problems had not been resolved and the support she had received was part of an ongoing process. As part of this process the Appellant has started psyco-therapy. We note that up until PS came back on the scene in 2005 the Appellant had been a good mother to JaM. The Appellant has been qualified as a nursery nurse for 20 years and although we have considered the evidence from Stephanie Smith-Paul, we do not find on the balance of probabilities that the Appellant has harmed or placed at risk of harm a child in a work setting. We have also taken into account the character evidence regarding the Appellant contained in the statements from Gillian Misz and Jayne Munro.

72.  In considering the issue of suitability it is not in our view simply a matter of considering what risk an Appellant may pose in the future, although that is clearly a very important factor, but also the importance of public confidence. As the Tribunal stated in the case of CN [2004] 398 PC:

“It is our view that it is the clear intention of Parliament that the language of the Act requires us to take a broad view having regard to the degree of risk posed by the Appellant, but also to acknowledge that the public at large and those who entrust their children into the hands of professionals have a right to expect, indeed to demand, that such people who are placed in such important positions of trust working with children “in a child care position” are beyond reproach.” 

73. Having considered the evidence overall, in particular the circumstances in which the Appellant’s misconduct occurred, the changes that the Appellant has made in her life, the support that she has accessed and the insight into what happened not only in her relationship with PS, but also in respect of events which she voluntarily disclosed have happened to her since, we consider that the Appellant is suitable to work with children and for the same reasons that she is also suitable to work with vulnerable adults. 

 
74.   We therefore allow the Appellant’s appeals.
75.   The decision of the Tribunal was unanimous.
Order
The Appellant’s name shall be removed from the list kept under section 1 of the Protection of Children Act 1999 and the list kept under Section 81 of the Care Standards Act 2000.

 22 December 2010

Tribunal Judge Stewart Hunter
Ms. Margaret Diamond
Ms  Denise Rabbetts